Citation Nr: 1042912
Decision Date: 11/15/10 Archive Date: 11/24/10
DOCKET NO. 07-23 129 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the
Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for an acquired psychiatric
disorder, claimed as post traumatic stress disorder (PTSD).
2. Entitlement to a total disability rating based on individual
unemployability (TDIU).
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate for
Veterans Affairs
ATTORNEY FOR THE BOARD
M. McBrine, Counsel
INTRODUCTION
The Veteran served on active duty from November 1967 to June
1969.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from decisions by the Department of Veterans Affairs
(VA) Regional Office (RO) in San Juan, Puerto Rico.
These issues were the subject of a prior September 2009 Board
remand, and now return again before the Board.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
Initially, the Board notes that, during the course of this
appeal, the regulations regarding PTSD were revised.
Specifically, 38 C.F.R. §3.304(f) (3) no longer requires the
verification of an in-service stressor if the Veteran was in a
location involving "fear of hostile military or terrorist
activity." Such a location can be evidenced by awards such as
the Iraq Campaign Medal or the Vietnam Service Medal. Lay
testimony alone can be used to establish the occurrence of an in-
service stressor in these situations. The new regulatory
provision requires that: (1) A VA psychiatrist or psychologist,
or contract equivalent, must confirm that the claimed stressor is
adequate to support a diagnosis of PTSD; (2) the claimed stressor
is consistent with the places, types, and circumstances of the
Veteran's service; and (3) the Veteran's symptoms are related to
the claimed stressor. Id. The liberalizing criteria contained
in the new § 3.304(f) (3) will be applied to PTSD service
connection claims that are pending as of the effective date of
the regulation (July 13, 2010) and to claims filed on or after
this effective date.
Further, the Board points out the ruling in Clemmons v. West, 206
F.3d 1401, 1403 (Fed. Cir. 2000) which clarified how the Board
should analyze claims for posttraumatic stress syndrome and other
acquired psychiatric disorders. As emphasized in Clemons, though
a Veteran may only seek service connection for PTSD, the
Veteran's claim "cannot be limited only to that diagnosis, but
must rather be considered a claim for any mental disability that
may be reasonably encompassed." Id. As the law regarding PTSD
claims has changed during the course of this appeal, the Board
finds that this case should be remanded in order that this new
law may be considered.
Further, the Board notes that, upon remand, the Veteran was
provided with a VA examination regarding his PTSD. However, the
Board finds this examination to be somewhat inadequate.
Specifically, while stressful events the Veteran experienced in
service were discussed, and the Veteran was diagnosed with
depression, the Veteran was not diagnosed with PTSD, although
previous VA treatment records had shown a diagnosis of PTSD.
Further, the examiner did not offer an opinion as to the etiology
of the Veteran's depression, or explaining the prior diagnoses of
PTSD. As this case is being remanded, the Board finds that the
Veteran should be offered an additional VA examination.
Further, as the resolution of this issue may have an impact on
the Veteran's claim of entitlement to TDIU, the Board finds that
claim must also be remanded. See Harris v. Derwinski, 1 Vet.
App. 180, 183 (1991) (two issues are "inextricably intertwined"
when they are so closely tied together that a final Board
decision cannot be rendered unless both issues have been
considered).
Accordingly, the case is REMANDED to the AMC for the following
action:
1. The AMC should schedule the Veteran for a
VA examination to determine the nature and
extent of any psychiatric disorder which may
be present. The claims file and the report
of verified stressors must be provided to and
reviewed by the examiner prior to conducting
this examination. The examiner should
comment as to whether he believes that PTSD
is the appropriate diagnosis. If so, the
examiner is requested to identify which, if
any, of the verified in-service stressors
detailed in the report are etiologically
related to and sufficient to cause PTSD, and
indicate how the Veteran otherwise meets the
diagnostic criteria for PTSD. If not, but
the examiner finds that the Veteran has a
different psychiatric disorder, the examiner
is requested to state whether it is at least
as likely as not that the psychiatric
disorder was incurred in or aggravated by
service or is causally related to service.
The complete rationale for each opinion
expressed must be provided. The examiner
should specifically comment on opinions from
the Veteran's prior VA examinations in May
2010 and March 2006, as well as prior
findings in the veteran's VA treatment
records of PTSD diagnoses, in offering his
opinion.
3. Thereafter, the AMC should readjudicate
the appellant's claims. If any benefits
sought on appeal remain denied, the appellant
should be provided a supplemental statement
of the case (SSOC). The SSOC must contain
notice of all relevant actions taken on the
claim for benefits, to include a summary of
the evidence and applicable law and
regulations considered pertinent to the issue
currently on appeal. An appropriate period
of time should be allowed for response.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999). No action is required of the
Veteran until he is notified by the RO; however, the Veteran is
advised that failure to report for any scheduled examination may
result in the denial of his claim. 38 C.F.R. § 3.655 (2009).
Thereafter, the case should be returned to the Board, if in
order.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2010).